Thursday the 10th Circuit Court heard the oral argument to
Kitchen v. Herbert 2: If You Can't Stand the Heat. Coming this Fall.
Kitchen is the groundbreaking decision out of the District Court of Utah that was the first ruling to overturn a marriage ban after the
Windsor and
Perry rulings. Yes, Utah.. right? But then again the court does what the constitution wants.
After the
Kitchen decision, a tsunami of lower court decision, heretofore known as the Gaydal Wave of 2013, gave deference to the 14th amendment, which of course had previously been turned down by the Burger Court in
Nelson v. Baker for "want of a substantial federal question."
The post Perry/Windsor victories cropped up in Utah, New Mexico, Oklahoma, Texas, Michigan Kentucky, Tennessee, and Virginia, while pending cases in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Louisiana, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Puerto Rico, South Carolina, West Virginia, Wyoming, and Wisconsin all look increasingly promising.
When going through all the material to see on a national scale what marriage looks like, I became interested in how the United States got to this point, legally speaking. Before I read
Kitchen, I knew the basics of the history. The basic frame work looks like this
Loving v. Virginia,
Nelson v. Baker,
Bowers,
Romer,
Lawrence v. Texas,
Windsor, and
Perry.
In Kitchen there is a great section that summarizes the movement towards equality:
In 1971,
two men from Minnesota brought a lawsuit in state court arguing that Minnesota
was constitutionally required to allow them to marry. Baker v. Nelson, 191
N.W.2d 185, 187 (Minn. 1971). The Minnesota Supreme Court found that
Minnesota's restriction of marriage to opposite-sex couples did not violate
either the Equal Protection Clause or the Due Process Clause of the Fourteenth
Amendment. Id. at 186-87. On appeal, the United States Supreme Court summarily
dismissed the case "for want of a substantial federal question."
Baker v. Nelson, 409 U.S. 810, 810 (1972).
Utah
argues that the Court's summary dismissal in Baker is binding on this court and
that the present lawsuit should therefore be dismissed for lack of a
substantial federal question. But the Supreme Court has stated that a summary
dismissal is not binding "when doctrinal developments indicate
otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Here,
several doctrinal developments in the Court's analysis of both the Equal
Protection Clause and the Due Process Clause as they apply to gay men and
lesbians demonstrate that the Court's summary dismissal in Baker has little if
any precedential effect today. Not only was Baker decided before the Supreme
Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429
U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973)
(plurality op.), but also before the Court recognized that the Constitution
protects individuals from discrimination on the basis of sexual orientation.
See Romer v. Evans, 517 U.S. 620, 635-36 (1996). Moreover, Baker was decided
before the Supreme Court held in Lawrence v. Texas that it was unconstitutional
for a state to "demean [the] existence [of gay men and lesbians] or
control their destiny by making their private sexual conduct a crime." 539
U.S. 558, 578 (2003). As discussed below, the Supreme Court's decision in
Lawrence removes a justification that states could formerly cite as a reason to
prohibit same-sex marriage.
The State
points out that, despite the doctrinal developments in these cases and others,
a number of courts have found that Baker survives as controlling precedent and
therefore precludes consideration of the issues in this lawsuit. See, e.g.,
Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st
Cir. 2012) (holding that Baker "limit[s] the arguments to ones that do not
presume to rest on a constitutional right to same-sex marriage."); Sevcik
v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker
barred the plaintiffs' equal protection claim). Other courts disagree and have
decided substantially similar issues without consideration of Baker. See, e.g.,
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that
California's prohibition of same-sex marriage violated the Due Process and
Equal Protection Clauses of the Fourteenth Amendment). In any event, all of
these cases were decided before the Supreme Court issued its opinion in
Windsor.
As
discussed above, the Court's decision in Windsor does not answer the question
presented here, but its reasoning is nevertheless highly relevant and is
therefore a significant doctrinal development. Importantly, the Windsor Court
foresaw that its ruling would precede a number of lawsuits in state and lower
federal courts raising the question of a state's ability to prohibit same-sex
marriage, a fact that was noted by two dissenting justices. The Honorable John
Roberts wrote that the Court "may in the future have to resolve challenges
to state marriage definitions affecting same-sex couples." Windsor, 133 S.
Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended
how this court should interpret the Windsor decision when presented with the
question that is now before it: "I do not mean to suggest disagreement . .
. that lower federal courts and state courts can distinguish today's case when
the issue before them is state denial of marital status to same-sex
couples." Id. at 2709 (Scalia, J., dissenting). It is also notable that
while the Court declined to reach the merits in Perry v. Hollingsworth because
the petitioners lacked standing to pursue the appeal, the Court did not dismiss
the case outright for lack of a substantial federal question. See 133 S. Ct.
2652 (2013). Given the Supreme Court's disposition of both Windsor and Perry,
the court finds that there is no longer any doubt that the issue currently
before the court in this lawsuit presents a substantial question of federal
law.
As a
result, Baker v. Nelson is no longer controlling precedent and the court
proceeds to address the merits of the question presented here.
The Burger Court's denial of Certiorari in
Baker v. Nelson had persistent consequences for the marriage equality movement. No court could accept a 14th Amendment argument except the Supreme Court. The Supreme Court would then have no lower court decisions to argue over. Essentially until laws fundamentally changed, any decision would have had to been de novo.
The legal shift happened, incidentally after 3 events occurred:
1. The passage of the Defense of Marriage Act in 1996 which were codified under 28 U.S.C. § 1738C and 1 U.S.C. § 7. Among other things, it allowed states to not recognize Gay some marriages. It also forbade the Federal Government from recognizing Gay some marriages.
2. State Constitutional Bans. Under
the logic of Baker, the issue at hand
applied to statutory bans. So a boost to the advancement of marriage equality
came from those who exploited discrimination for political gain. The movement
to enact state constitutional bans against same-sex marriage began in 1998 with
Alaska and Hawaii amending their constitutions to prohibit gays from getting all gay with each other, am I right
fellas?
3. Marriage equality in the various
states. People were married in one state and later moved to another. The notions
of full faith and credit were challenged. Furthermore marriages were not equal
at the federal level, due to DOMA.
By the time the courts had reached the Perry/Windsor Era, the legal landscape of America look like the following:
Maximum States Constitutional Bans: 30
States with Marriage Equality at the Time of Perry/Windsor: 9
Maximum States to Ever Have Marriage-Lite: 16 + DC
The legal setting was in place to overturn the
Baker v. Nelson precedent.
Which brings me to the oral argument for Kitchen.
Here is copy of the oral argument from the April 10th, 2014
Kitchen v. Herbert hearing. It is three straight white dudes discussing my rights as an individual, so what could be more entertaining and in no way frustratingly patronizing.
The audio file has an issue with the left audio feed, so if it sounds gargled, open your equalizer and push the feed to your right output.
A few quick comments:
What is marriage? Apparently only something that a state has one hundred percent control over (because that's what I concluded from reading Loving v. Virginia.)
According to the defendant, it's better to have all of your rights taken away than to be a second class citizen... great argument.
Why the fuck did the defendants just bring up Maggie Gallagher? Seriously. She is a pointless nobody, with zero credibility. She has no higher degree, no JD, no Phd in psychology, and no expertise. I mean for fuck-sake, why didn't they just cite me or even my mom, or fuck it why not my Westie, who can put together an argument that is more coherent and more germane to the topic than Gallagher. What a bunch of assholes. fucking fuck fuck. I mean seriously, I am glad this douchebag quoted her, because it is on tape, and he will go down in history as the small-minded bigot who quoted Gallagher and then got his ass handed to him in court and everyone in the world pointed and laughed at his tiny dick.
"[Gay marriage] is too new" to have data on societal effects. And so it will be if we never allow gay marriage.
"The disappearance of the dad." We cannot allow gay marriage because the children won't have a dad.... right. Also did he just try to equate gay couples to single parents?
"'Traditional Marriage'" Yes nice 200 year old tradition in a 400,000 year old species. If I hear traditional marriage one more time, I am going to yak.
DOMA was about states right to define marriage, that does not exclude the ability of the Federal constitution to enforce equal protection. It is not that hard to understand. We do not have any laws prohibiting poor people from getting married. Or ex-convicts. Or people named Trent. All of whom probably should be suspect parents/spouses before gay people.
Why don't conservatives get that gay people can have kids. I don't, but others do.
Why does it always come down to polygamy? A court couldn't simply allow polygamy. The polygamous marriage system wouldn't function without additional legislation to regulate how it would function. Most states have a system where each spouse owns half of the property of the marriage. How would that work in a polygamous system? Answer it wouldn't. Polygamy literally changes the definition of marriage, not who can marry.
So did Kitchen et al sue the right people?
Liam '14
